Appeal No. 2006-0442 Page 4
Application No. 10/123,142
lines 14-23; and column 3, lines 32-35). See the Examiner’s Answer, page 4. However,
“Zerbe . . . [does] not teach the use of modified starch in the film.” Id., page 6.
The examiner relied on Leung to make up for this deficiency. The examiner
characterized Leung as “teach[ing] fast dissolving, orally consumable, edible films
comprising suitable film-forming agents of high amylose starch, modified starch such as
hydroxypropylated high amylose starch, in combination with dextrin, hydroxypropyl
cellulose, various surfactants and flavorants . . . (see reference column 4, line 64 – col.
5, line 22).” Id.
The examiner concluded that it would have been obvious
to use the combined reference teachings of Leung et al. within Zerbe et al.
because the reference of Leung et al. shows the use of modified starches,
such as hydroxypropylated high amylose starch in combination with
hydroxypropyl cellulose, dextrin and surfactants and flavorants to obtain a
fast dissolving film that provides breath-deodorizing properties and similarly
Zerbe et al. teach a water-soluble film for oral administration comprising
film-forming substances, surfactants and flavorants whereby the film
provides instant wettability, rapid dissolution and rapid disintegration upon
oral administration in the oral cavity. The expected result would be an
effective, fast-dissolving film preparation beneficial for treating oral hygiene
conditions.
Examiner’s Answer, page 7.
Appellants argue that Leung’s “lengthy list of possible ingredients, especially
when considered in view of the preference for pullulan and the 39 examples (containing
pullulan or polyvinyl pyrrolidone), none of which contains either hydroxypropyl cellulose
or a modified starch, is merely an invitation to experiment with the use of film-forming
agents other than the preferred pullulan. An invitation to try various combinations that
are not preferred is nothing more than a starting point for experimentation.” Appeal Brief,
pages 6-7. Appellants argue that the film-forming agents disclosed by Leung can be
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